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Can a criminal conviction affect an application for settlement in the UK?

03 February 2012

The Immigration Rules were amended on 6 April 2011 to include a new tougher criminality threshold. The key difference is that as of this date any unspent conviction will lead to a mandatory refusal of a prospective application to be granted settlement in the UK under the working and the family route. The new threshold is a much stronger requirement that the "good character" found at paragraph 322 of the Rules which sets out the general ground of refusal.

Thus, to assess your eligibility for settlement, it's important to have an good understanding of the 1974 Rehabilitation of Offender Act which stipulates when a conviction can be deemed "spent". In particular, a conviction becomes 'spent' after a specified rehabilitation period. This time depends on two key variables:

(1) the sentence imposed and not the offence committed and

(2) the age of the offender at the time of conviction.

Section 5(2) of the Act sets out the rehabilitation periods, however it is important to remember that certain convictions will never be considered spent and as such an applicant might never qualify for settlement in the UK. Depending on the specific circumstances of the case, the only option might be for the applicant to apply for an extension of his or her leave to remain.

For instance, under section 5(1) of the 1974 Act, a sentence for life imprisonment or as sentence of imprisonment for a term exceeding 30 months will never be "spent". In addition, the sentence in question can be passed, or an order made, by the courts of any country, including court martial for persons subject to military discipline. Therefore, convictions outside of the UK will be treated as if that conviction occurred in the UK.

Finally, when calculating the rehabilitation period, one must bear in mind that this runs from the date of conviction and not the date of completion of the sentence. Also, the rehabilitation period is based on the length of the sentence, not the time (if any) actually spent in prison. Further, suspended sentences have the same rehabilitation period as sentences served.

However, there is some good news  in so far as the UK Border Agency will exercise leniency in cases of  Fixed Penalty Notice and Cautions. Receiving a Fixed Penalty Notice (FPN) is not a criminal conviction and should therefore be disregarded. The exceptions to this will be where either there are criminal proceedings for failure to pay and the individual has an unspent conviction as a result of that or the individual has multiple FPNs, particularly over a short period of time, and should be considered in line with the general requirements of character, conduct and associations within paragraph 322(5) of the Rules.

Likewise, receiving a caution is not a criminal conviction and, despite conditional cautions carrying a short rehabilitation period, they are to be disregarded. However, a person who has multiple cautions, particularly over a short period of time, should be considered in line with the general requirements of character, conduct and associations within paragraph 322(5) of the Rules.

The only exception to the new criminality requirement are applicants who are seeking settlement through the protection route (refugees and people who have been granted humanitarian protection). Highly skilled migrants programme (HSMP) who are covered by the HSMP ILR JR policy might be also exempt.

Similarly applications made by European nationals and their family members will be considered under the grounds of public policy, public security and public health.

We would strongly recommend any prospective applicants for settlement in the UK to seek professional legal advice particularly in cases where they might have had minor criminal offences and  due to the complexity of the Immigration  Rules.

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Migra & Co is a private immigration company, regulated by the Office of the Immigration Services Commissioner (OISC), reference number F200900038. This website is not a government website and as such, we are not linked or affiliated with the UK Visas and Immigration. We offer expert legal advice and flexible tailored solutions to both private and corporate clients to ensure that their immigration needs are met. If you wish to download or prepare a UK visa application form, you can do so free of charge by visiting the Official UKVI website.